This post is cross-posted from ConstitutionNet. It was first posted on the Voices from the Field section on 13 July 2018. Disclaimer: The views expressed in Voices from the Field contributions are the author's own and do not necessarily reflect International IDEA’s positions.

A popular initiative calling for a constitutional referendum on the electoral system in Croatia would narrow the scope of parliamentary mandates for representatives of national minorities. It is, however, likely that the Constitutional Court would proclaim the referendum question unconstitutional. The initiative has resurfaced the apparent contradictions between allowing popular initiatives and minority rights and the insufficiency of judicial mechanisms to address minority concerns – writes Professor Djordje Gardasevic.

Introduction

In May 2018, a new popular initiative - named ‘The People Decides’ - calling for a constitutional referendum was launched by a group of Croatian citizens. At the moment, as the procedural precondition for calling a referendum, the Government is checking whether enough (10%) of all the voters’ signatures were collected. It is expected that this proceeding will last at least until September and that, should this condition be fulfilled, the Parliament will most likely address the Constitutional Court with the request for a substantive judicial review of the proposed referendum question (the referral to the Court in that respect is just optional for the parliament). In its most delicate part, the initiative seeks to redefine the mandate of parliamentary representatives of national minorities (NMPRs) so as to exclude them from voting on the confidence to the government and on the adoption of the state budget. At the same time, the NMPRs would still be elected within a system of ‘reserved seats’, although their number would be reduced, along with the general reduction of all parliamentary seats. Apart from that, the initiative seeks to increase the number of preferential votes to three, lower the minimum election threshold to join parliament to 4%, rearrange the criteria for establishing electoral districts and introduce voting by correspondence and by electronic means.

This popular initiative is the fourth attempt to amend the Constitution by a referendum.

This initiative is the fourth attempt to amend the Constitution by a referendum and the first case in which the Croatian Constitutional Court would possibly apply the doctrine of the ‘unconstitutional constitutional amendment’. This theory was first unveiled by the Court in the ‘marriage referendum’ case in 2013 and is substantially supported by the concept of the ‘Croatian Constitutional Identity’, i.e. the idea that there is an obviously unamendable part of the Constitution. According to the evolving practice of the Court, the said concept also includes the basic values of equality in general and equality between the Croatian majority and other minorities in particular, as they are captured in article 3 of the Constitution.

The popular referendum initiative was introduced into the Croatian legal system with the constitutional amendments in 2000. The said amendments fundamentally changed the state’s constitutional model, most notably by transforming the ‘semi-presidential’ system into a ‘parliamentary’ one, by improving the ‘checks and balances’, and by strengthening constitutionally protected rights and freedoms. Generally, the revision was a reaction to the experiences of the previous decade in which a combination of strong presidential prerogatives and clear domination of one political party in practice proved to be inappropriate for democratic developments of the country, which had just exited a fatal war, affirmed its independence and wished to start new processes for joining the European Union. In political terms, all this was possible because a new coalition of political parties won the 2000 elections.

Popular initiatives were introduced through constitutional amendments in 2000.

In an attempt to emphasize the direct democratic potential of the people, article 87 of the new Constitution provided that a referendum, including to revise the constitution, must be called when at least 10% of all the voters in Croatia demand so. Constitutional amendments in 2010 additionally prescribed that the motion at such a referendum is considered approved if supported by a mere majority of the voters taking part therein. In technical terms, if 10% of the voters request a referendum, parliament must call it. The only possible check to prevent a possible abuse thereof lies with the Constitutional Court, which, according to article 95 of the Constitutional Law on the Constitutional Court, verifies whether a referendum is substantially in accordance with the Constitution and whether the procedural requirements for the call have been met.

In the past eighteen years, Croatia has experienced a series of popular referendum initiatives addressing a wide variety of issues, both in the international (cooperation with the ICTY, joining the NATO, regulating the state borders with Slovenia) and national context (social and economic legislation, electoral system, rights of national minorities). However, all the initiatives failed before the issues were put to a referendum, either on procedural (lack of required voter’s signatures) or substantive grounds (unconstitutionality of referendum questions, but for reasons other than those based on the ‘unconstitutional constitutional amendment’ theory). The only successfulreferendum of such a type was held on 1 December 2013 when the Constitution was amended so as to prescribe that marriage is ‘a living union between a woman and a man’.

Endangering the representation of national minorities?

Croatia has since 1991 recognized through legislation fixed parliamentary seats for national minorities. Constitutional amendments in 2000 expressly provided that besides the general electoral right, the special right of members of national minorities to elect their representatives into the Croatian Parliament may be provided by law. This special right of election was subsequently confirmed in the 2002 Constitutional Law on the Rights of National Minorities. In line with this, article 16 of the Act on Election of Representatives to the Croatian Parliament, as amended in 2003, prescribes that national minorities elect a total number of eight representatives in a special electoral unit through the first-past-the-post system. However, members of national minorities may on each election choose whether they will use this model or will vote in their respective general electoral units, just as other citizens. The remaining 140 representatives, as well as additional three representing diaspora, are elected through a proportional system in eleven separate units. So far, the only successful challenge to the described model occurred when the Constitutional Court in 2011 struck down the 2010 amendments to the Constitutional Law on the Rights of National Minorities and amendments to the Act on Election of Representatives to the Croatian Parliament, which introduced double-voting rights (one vote for ‘representatives in the general proportional system and another for special representatives of national minorities) for ‘small’ and additional special voting rights for ‘big’ national minorities (in this sense, these ‘special voting rights’ guaranteed that minorities counting more that 1.5% of the whole population would have at least three parliamentary representatives elected in general electoral units). Both arrangements were invalidated by the Court. Apart from this, the provided scheme in the past eighteen years has worked well.

If the Court decides that the referendum question is constitutional, there is quite a great chance that the whole referendum would be successful.

The proposed popular referendum initiative seeks to amend the constitutional rules pertaining to the mandates of NMPRs. The first argument in support of the initiative is that representatives of minorities receive significantly smaller number of votes than those in general electoral units and that they therefore lack relative legitimacy for participating in crucial parliamentary decision-making. The proponents of the initiative support the argument with data indicating that most of the minority voters actually opt for participating in elections as ‘general voters’, which is their legally recognized right, rather than as members of national minorities. On the one hand, the smaller number, or percentage, of minority voters required and foreseen for electing their representatives comes as a natural consequence of the concept of minority as such and special electoral rules in that context must exclusively be seen as a kind of affirmative measure. In addition, while it nowhere links the definition of minorities to their actual number, the Croatian Constitution in its Preamble enumerates national minorities and guarantees them ‘equality with citizens of Croatian nationality and the exercise of their national rights in compliance with the democratic norms of the United Nations and the countries of the free world’. On the other hand, the relevant data published by the State Electoral Committee show that there indeed are some minorities who do use their special electoral rights (i.e. they vote in the special electoral unit reserved for national minorities, rather than as other general voters). The same data also confirms that the electoral turnout of voters of those minorities is quite in line with the average national turnout of voters in general units. However, this may not be easily said for yet another special group of voters, those belonging to the diaspora, whose participation in previous elections has significantly decreased. Therefore, it seems that this particular claim supporting the referendum proposal is open to criticism from the non-discrimination imperative.

It seems indispensable that other non-judicial checks for protecting minority rights be introduced.

The second argument of the supporters of the initiative is that, due to the way in which and the purpose for which they are elected, NMPRs should (primarily) represent the interests of minorities. Consequently, the initiative claims that they have a special, rather than a general political mandate, which in itself leads to their exclusion in making decision on the formation and dismissal of the government and the approval of the state budget. However, already in 2001,the Constitutional Court explained that Croatian parliamentary representatives do not have an imperative mandate, but rather a representative one, in which the representatives in their activities may act independently of the views of their electors. Construing its argument on the theory of an indivisible state sovereignty, the Court stressed that representatives represent the interests of the people as a whole, and not just those of voters who elected them or constituencies in which they were elected. The Court reiterated the same reasoning in another ruling from 2010.

The third crucial argument underlying the initiative is that the mandate of NMPRs should be limited because of a ‘frequent practice of undisguised political trade’ with minority representatives in processes of creation of government and adoption of the country’s budget. Here again, one must note that the Constitutional Court in 2010 made a clear reference to this point:

…the Constitutional Court notes that the constitutional nature of an MP’s representative mandate should not be challenged because the MP could commit a dishonorable act or criminal offence. For dishonorable acts that are not criminal, MPs carry political responsibility that may result in them not being re-elected in the next elections. In the case of an alleged crime, the Constitutional Court recalls that the Constitution allows the detention and criminal prosecution of an MP and that a final court verdict of guilty, under certain circumstances, leads to the loss of his/her seat as MP.

Apart from these basic answers to the main points stressed in the initiative, two more arguments might shed some additional light on the evident outcome of the whole case, once it comes before the Court. Firstly, whichever ‘normative’ theory or existing data one takes in supporting the claim that NMPRs mandates should be limited, it still remains constitutionally objectionable that the proposal in its nature is selective, because it does not appropriately take into account all the powers of the Croatian parliament, but just some. And secondly, the Constitutional Court in 2011 did say that NMPR’s mandates indeed could be limited. But it quite clearly stressed that this could be done only in the case where national minorities would have double voting rights.

Concluding remarks and next steps

As noted above, at the time of this writing, the Croatian government is in the process of checking the actual number of voters’ signatures submitted to the Parliament in support of the initiative. Should it be established that at least 10% of the signatures of all the voters in Croatia was collected, the Parliament will probably, as the last possibility to stop it, try to challenge the initiative before the Constitutional Court on substantial grounds. However, if the Court decides that the referendum question is constitutional, there is quite a great chance that the whole referendum would be successful.This is because the Constitution provides that a decision on a referendum in Croatia is made by a majority of only those who participate in it, i.e. there is no turnout requirement, or other constraint on the majority, such as some level of support from voters of minority groups.

One must also bear in mind that this is actually the fourth popular referendum initiative in which the rights of minorities are in focus (in 2013, Croatia had a marriage referendum; in 2014 an initiative, directed at regulating the official use of languages and scripts of national minorities, was invalidated by the Constitutional Court; and in May 2018 another initiative was organized in an attempt to call a referendum on repealing the Istanbul Convention dealing with the prevention and combating of violence against women and domestic violence. In this last case, the government is also checking the voters’ signatures collected). It seems indispensable that apart from the existing system of judicial control of referendum initiatives, other checks for protecting minority rights in this respect be introduced in Croatia. This surely pertains to the possible revision of the Constitution in a way of prescribing clear exceptions to the issues that could be put on a referendum vote.